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    題名: 論洛克比空難案所涉及之國際法問題
    其他題名: The Lockerbie Cases and Its Relevant Issues in International Law
    作者: 趙國材
    Chao,K. T.
    貢獻者: 政大外交系
    關鍵詞: 國際恐怖主義;洛克比案;政治犯罪;臨時辦法;管轄權之衝突;法律責任;國際刑事協助;1963年關於在航空器內的犯罪和其他某些行為的東京公約;1970年關於制止非法劫持航空器的海牙公約;1971年關於制止危害民用航空安全的非法行為的蒙特利爾公約;國際法院規約;國際法院規則
    International terrorism;Aerial Incident at Lockerbie Cases;Political offences;Provisional measure;Conflicts of jurisdiction ;Legal responsibility;International criminal assistance;Tokyo convention on offense and certain other acts committed on board aircraft;Hague convention for the suppression of unlawful seizure of aircraft;Montreal convention for the suppression of unlawful acts against the safety of civil aviation;Statue of the ICJ;Rules of ICJ 
    日期: 2010-12
    上傳時間: 2013-05-07 14:05:56 (UTC+8)
    摘要: 1988 年12月21日發生在蘇格蘭洛克比機場上空的「洛克比空難案」（Lockerbie Case），行為人是利比亞安全情報人員埃梅格伊（Ali-Abdel Basser al-Mergrahi）、法伊瑪瑪（Ali-Amin Khalifa Fahima，根據屬地主義(Territorial Principle)，英國有管轄權；行為人是利比亞安全情報人員，根據屬人主義(Nationality Principle)，利比亞有管轄權；受害者270人包括英國在內許多國家的國民，根據屬人主義，受害者的國籍國有管轄權；泛美航空公司103號班機(Pan Am Flight 103)是在美國登記的公司，被炸毀的航空器登記的國籍國為美國，根據屬人主義美國亦有管轄權。在刑事管轄權方面，犯罪行為人已逃回其本國利比亞，利比亞有管轄權。本文首先闡述國際法上關於在航空器犯罪的幾項重要公約，再討論1971年《關於制止危害民用航空安全的非法行為的蒙特利爾公約》引渡或起訴的解釋與適用所引起之爭端，利比亞基於「政治犯不引渡原則」(Principle of Non-Extradition of Political Offences)，堅持不肯將嫌犯引渡給英美審判；英、美及利比亞運用國際法處理該案之經過、法律爭點、雙方辯駁、聯合國安理會第731號決議案與國際法院之判決；探討法律解決、政治解決、國際法院與安理會之關係及司法審查等。最後析論國際恐怖主義之管轄權衝突、法律責任歸屬及國際刑事協助等問題。
    After a number of investigations the Lord Advocate of Scotland and a Grand Jury of the United States charged and indicted two Libyan nationals, Abdel Basser al-Mergrahi and Al-Amin Khalifa Fahima, of complicity in the bombing. The UK and the US demanded the rendition of two named Libyan suspects accused aircraft sabotage of involvement in the placing of a bomb on the Pan American airliner Flight 103 on 21 December 1988, which blew up over the Scottish town Lockerbie, so that they could face trial in New York or Scotland.Libya rejected the demand, stating that it would investigate the case itself and asking for the evidence in the hands of the American and British prosecutors to help to do so. Libya noted that it was legally not in apposition to extradite its own nationals. Libya then brought against the US and the UK at the International Court of Justice, the Court`s treatment of Libya`s request for provisional measures showed that it was alive to this point. On this premiss Libya ask the Court on 3 March 1992 to indicate provisional measures that the UK and US should cease and desist from threats and further action against Libya. The Court opened its hearings on the request for the indication of provisional measures on 26 March 1992, with the President of the case declining to use his discretionary powers under Article 74 (4) of the Rules of the Court to call upon the parties to the dispute to act in a way which would not prejudice any future Order on provisional measures. Five public sittings of the Court followed on 26, 27, and 28 March with both parties presenting oral arguments on the request for the indication of provisional measures. Libya maintains that the US and the UK breached their legal obligations under the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation by,inter alia, demanding that Libya surrender the alleged offenders for trial either in Scotland or in the United States. Libya arguing that the acts alleged constituted an offence under the Montreal Convention, and that the UK and US were in breach of the convention by virtue of the pressure they were placing on Libya to surrender the two Libyan nationals for trial. It is far from clear that Libya is in breach of its obligations under the Montreal Convention. The primary duty of a State is to submit a case to its prosecutor if it does not extradite the fugitive. Libya has made elaborate gestures of its willingness to do this. Even if there were a duty to extradite,that duty is to be exercised in accordance with national extradition law and Libya may not, according to that law, surrender its nationals. In any event, the fugitives have an arguable case that the offences are political character and thus non-extraditable. It may yet be that there are legal questions to be raised on the merits about the right of the Security Council to proceed in the way that it has, and political questions about the influence of the Western permanent members of the Security Council`s decision-making. It appears that the Security Council in the Lockerbie Cases as aninnovation which may be relied upon for the enforcement of the counter-terrorism treaties. Whether terrorist State exception is applicable in this case or not that is another issue. Libya had questioned whether they would have a fair trial if they were surrendered. However, this is irrelevant to some extent because the Security Council requests in its Resolution 731(1992) to extradite two Libyan suspected bombers to the United Kingdom or the United States for trial. On 31 March 1992, the Security Council passed a Resolution 748 (1992),which makes no express reference to Chapter VII, is concerned with the threat to international peace and security posed by Libya`s support for terrorism, imposed a relatively restricted range of sanctions upon Libya due to its refusal to renounce terrorism, and demand that the accusers be handed over two suspected bombers makes with no reference to the Montreal Convention. The Security Council requests in its Resolution 748 (1992) and Resolution 883 (1993) surrender two Libyan suspects and to impose sanctions against the Libyan Arab Jamahiriya for its failure to comply. The rendition of the men is only one of the steps required to be taken by Libya with the object of removing the threat to international peace. These sanctions imposed a mandatory arms and air embargo upon Libya. It also called upon States to reduce significantly the number and the level of staff at Libyan diplomatic mission and diplomatic posts. A Committee was deseign up to monitor compliance with the sanction. Upon the certification by the Secretary-General of the arrival of the two accused Libyan indictees in the Netherlands for trial, thus the Security Council passed the Resolution 1192 (1998) provided, inter alia, for the suspension of the sanctions. Sanctions on Libya had been suspended. Libya and the UK and the USA reached an agreement in 1998 and the Security Council endorsed and mandated the arrangements for the trail. This duly occurred and the President of the Council issued a statement on 9 July 1999 noting therefore the suspension of the sanction. The Scottish Court presiding over the trial of the two Libyans accused of bombing Pam Am Flight 103 on 21 December 1988, has found Abdel Basser al-Mergrahi guilty of murder and sentence of life mprisonment under Scottish law. With regard to Al-Amin Khalifa Fahima, the Court concluded that the Crown failed to present sufficient evidence to satisfy the high standard of proof beyond reasonable doubt that is necessary in criminal cases. This does not mean that defendant is innocent of the crime charged. The Government of Libya must take responsibility. The sanctions on Libya were formally revoked by S.C. Resolution 11506 (2003) on the Libyan government`s acceptance of responsibility for the Pan Am 103 bombing, its renunciation of terrorism and the payment of appropriate compensation to the victim`s families.
    The purpose of this article is to examine various implications of the 1992 Ariel Incident Cases. The article divides into four sections. The first section analysis international conventions regarding to crimes committed on aircraft as well as unlawful acts of violence at airports serving International Civil Aviation. The second section explores Lockerbie Cases. The third section discusses the power limit between the International Court of Justice and the United Nations Security Council focus on justiciable and non- justiciable disputes, as well as judicial review in respect of the Security Council Resolution. The four section considers international terrorist issues on conflicts of jurisdiction, legal responsibility, and international criminal assistance. It also addresses that a new framework of international law that confronts modern threats is long overdue. If it is to revive the legitimacy of international law, this order must be predicated on a new principle, under which individual States assume reciprocal obligations to contain transnational threats emerging from within their border.
    關聯: 軍法專刊, 56(6), 58-77
    法學論著
    資料類型: article
    顯示於類別:[外交學系] 期刊論文

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